Raduenz v. School District No. One

42 Wis. 397 | Wis. | 1877

Cole, J.

Under ch. 150, Laws of 1873, the subcontractor could only recover from the school district such sum or amount as was actually due from the district to the principal contractor when the action was commenced or was tried. The subcontractor could not have a judgment against the district for money thereafter to be earned by the principal contractor, when the same should become due. The language of the statute is, that from the time of the service of the summons and complaint as in other civil actions, such school district “shall be liable to such subcontractor for the amount that may^be found due or owing by such principal contractor to such subcontractor, with all costs of such action, not exceeding the sum which it may owe to such principal contractor.” Now it appears from the record that the summons and complaint were served on the district on the 8th of February, 1876. The evidence shows that the district did not then, nor at any time thereafter, owe the principal contractor anything, but that, on the contrary, the whole sum of $4,984.69 had been paid. Whether or not the court below was right in holding that the burden was on the plaintiff to show that the district had not paid the sums mentioned in its contract with Eoss, is now immaterial, in view of the fact that the plaintiff assumed to show, and did prove by his witnesses, that the whole amount had been paid in December previous. It appears that Eoss was paid in school orders, and some of these orders were left by him in the hands of the cleik of the district to pay Swartz and Fay the debts which the district board had become security for to those parties. It is said that the school board had no legal authority to guaranty the payment of a debt by Eoss. 'Whether this proposition is correct or not is not a question on this record. The action is not brought to enforce that guaranty; and it is sufficient to say that Eoss had appropriated these orders to the payment of these debts, as he had the right to do, before the commencement of this action.

The judgment of the circuit court, dismissing the complaint as to the school district, must therefore be affirmed.

By the Cov/rt. — Judgment affirmed.